The Change in Transnational Labour and Economic Law

The group will analyse these phenomena in light of democratic legal and constitutional theory on the one hand and in light of current approaches to international political economy on the other. The analyses are meant to contribute to an understanding of the societal significance of the phenomena in focus and to decode the juridical controversies present in them. These operations will help to open the restricted fields of juridical justifications which can be brought forward in those controversies.

1.    Protection against Indirect Takings: The Changing Function of International Investment Protection
The project of Rhea Hoffmann analyzes current developments in international investment law. The starting point of the research project is the legitimacy crisis in investor-state arbitration, which becomes obvious particularly with regard to indirect expropriations. Deficits in the legitimacy of the system mainly result from the institutional arrangements of investor-state arbitration, the increasing number of conflicting and inconsistent decisions by arbitral tribunals, and the influence on domestic policy space, which can end up in the shrinking of democratic sovereignty. The research project concentrates on system-internal approaches, which try to resolve the legitimacy crisis. It depends on a critical analyzes of whether those approaches provide a valid normative justification to the regime of international investment law. The function of international investment law with regards to ongoing asymmetric globalization, the need for democratic legitimacy, and the problem of a fair balance between the sovereignty of states and investors are in the focus of the project.

2.    Protection of Human Rights against Abuses from Transnational Corporations
The project of Sofia Massoud is based on the influence of economic actors on society, in particular the violation of human rights by transnational corporate groups. Subject of the work will be the accountability of transnational corporations for human rights abuses. Therefore the work deals with existing approaches on direct accountability and voluntary approaches as well as state duties to protect. For that reason, models and enforcement mechanisms will be analyzed and deficiencies identified. In addition, a critical examination of the existing discourse takes place with regard to possible justification elements by revealing the human rights discourse as legitimating the existing (economic) order.

3.     Transnational Trade Law as Transdemocratic Law
Alexander Wagner’s project focuses on the problem of the legitimacy of transnational autonomous norm orders in the context of “lex mercatoria”. Building on the reconstruction of crucial features of enlightened democratic theory, theories of (private) law, and International Political Economy, he aims at developing an analytical frame, which enables us to criticize transnational norm orders from a democratic perspective.  The need of a critique inspired by democratic theory arises from an analysis of three strategies of justifying transnational law, which are important to temporary research approaches. Firstly, it will be shown that transnational norm orders specifically do not comply with formal democratic demands.  Secondly, it will be argued that it is wrong to assume transnational norm orders do not need to be democratically justified, since they allegedly affect the contracting parties only. Finally, Alexander Wagner will critically reconstruct the concepts of party autonomy and private autonomy, which often are interlinked in discussions on the legitimacy of transnational norm orders and constitute a theoretical basis for their justification. The central thesis is that common approaches of justifying autonomous transnational trade law are neither sufficient from a democratic perspective nor from a perspective of legal theory.

4.    The Changing Function of Transnational Private Law
The framework project by Florian Rödl takes the three foregoing projects as its empirical basis and focuses on the changing function of transnational private law in general. It links up with line of critical thought in private law which does not start with the idea of indeterminacy of (private) law, but with an analysis of the social function of the concrete articulations of the basic forms in private law as personality, property, contract and restitution. The project starts with the following hypothesis: The functional change in transnational private law is characterized by a slow but steady transgression from rules for transnational legal relations which are administered by the nation state to rules which tend to helping economic actors to “emancipate” from democratic regulation. This change comes about due to instances of selective instrumentalization of private law-guarantees of equal freedom – as in the cases of investment protection and international business arbitration – which appear illegitimate even in terms of private law’s own intrinsic normativity. On the other hand sources for counter-movements become also visible – as the case for “human rights violation as tort” shows.